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Court of Criminal Appeal 14 June 2024

JP v R

[2024] NSWCCA 96

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCE SEXUAL ASSAULT (CHILD) MANIFEST EXCESS

Citation: JP v R [2024] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 14 June 2024
Judges: Ward P, Rothman J, Wright J

Background

The applicant, identified as "JP", pleaded guilty at the earliest opportunity in the Local Court to two charges of sexual intercourse with a child aged between 14 and 16 years in circumstances of aggravation, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The aggravating circumstance in both counts was that the victim was under the applicant's authority. The offences occurred on or about 29 January 2022, when the applicant was 35 and the victim, his partner's 14-year-old daughter, was living with him in emergency accommodation.

In the District Court at Newcastle, the sentencing judge imposed an aggregate head sentence of 5 years' imprisonment with a non-parole period of 3 years and 3 months. This reflected a 25 per cent discount for the early guilty plea. The indicative sentences for each count were 3 years (Count 1) and 4 years and 5 months (Count 2).

The applicant sought leave to appeal his sentence to the Court of Criminal Appeal on two grounds: that the sentencing judge failed to account for the effect of his mental health on his moral culpability and the need for deterrence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to consider the impact of the applicant's mental health on his moral culpability and on the weight to be given to general deterrence.
  • Whether the aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years and 3 months was manifestly excessive.

Decision

On Ground 1, the Court rejected the submission that the sentencing judge had failed to engage with the applicant's mental health. A forensic psychologist's report had been tendered, which documented the applicant's significant childhood trauma, including a mother with alcoholism and experiences of emotional and physical neglect. The Court found that, while those psychological factors may help explain the circumstances giving rise to the offending, they did not diminish the applicant's moral culpability. Critically, Rothman J concluded that the applicant's mental health problems did not, at the time of the offending, impair his ability to control his conduct or his capacity to distinguish right from wrong.

The Court drew on the foundational principle that criminal law operates on the premise that individuals possess free will, subject to qualifications where that free will is genuinely diminished, such as by mental illness affecting self-control or the ability to understand the nature of one's actions. The applicant's situation did not meet that threshold. Understanding the psychological factors that contributed to offending is not equivalent to those factors reducing culpability.

On Ground 2, the Court found no error in the sentencing judge's approach and was not persuaded that the sentence was unfair or plainly unjust. The offences carried a maximum penalty of 12 years' imprisonment and a standard non-parole period of 5 years, each serving as a guidepost. The sentencing judge's aggregate sentence, after the 25 per cent plea discount, was within an appropriate range given the objective seriousness of the offending and the relevant circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court's obligation to consider the impact of mental health on moral culpability does not automatically reduce that culpability; the mental health condition must actually impair the offender's capacity to control conduct or to distinguish right from wrong.
  • Psychological factors that help explain the background to offending are distinct from factors that legally diminish moral culpability. The Court of Criminal Appeal confirmed these two categories should not be conflated.
  • In dismissing the appeal, the Court affirmed that the standard non-parole period and maximum penalty under s 66C(4) of the Crimes Act 1900 (NSW) operate as guideposts in fixing a sentence for sexual intercourse with a child aged between 14 and 16 in circumstances of aggravation.
  • No error was established in the sentencing judge's application of the 25 per cent discount for an early guilty plea entered at the first available opportunity in the Local Court.
  • The Court applied the well-established principle from House v The King (1936) that appellate intervention in sentencing requires identification of error; mere disagreement with the result is insufficient to warrant a reduction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)

Cases
- Bugmy v The Queen (2013) 349 CLR 571; [2013] HCA 35
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- Lin v R [2023] NSWCCA 304
- Aslan v R [2014] NSWCCA 114
- R v Engert (1995) 84 A Crim R 67